AS TO THE ADMISSIBILITY OF

Application No. 23959/94

by Margit , Roswitha and Melanie JANSSEN

against Germany

The European Commission of Human Rights (First Chamber) sitting in private on 9 September 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 March 1994 by Margit , Roswitha and Melanie JANSSEN against Germany and registered on 25 April 1994 under file No. 23959/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

- the observations submitted by the respondent Government on 1 July 1996 and the observations in reply submitted by the applicants on 16 September 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are German citizens. The first applicant lives in Oberhausen , the second and third applicants live in Mülheim .

The first applicant is the daughter, the second applicant the stepdaughter and the third applicant the grandchild of Mrs Gretel Janssen , who died on 27 July 1986.

All three applicants are represented by Mr R. Battenstein , a lawyer practising in Düsseldorf .

The facts of the case, as submitted by the parties, may be summarised as follows.

Before her death from mesothelioma , Mrs Gretel Janssen had lodged on

23 December 1985 a compensation claim with her husband's social security insurance association ( Maschinenbau - und Metall-Berufsgenossenschaft ) in Düsseldorf . She had submitted that her husband had worked from October 1950 to December 1959 as an asbestos fabric cutter in a work area where asbestos mattresses were manufactured. Workers had to clean their clothes themselves. She had washed her husband's clothes every day. She alleged that this activity had caused her to contract an asbestosis related disease.

Her claim was rejected by the competent insurance association on

28 February 1986. An appeal ( Widerspruch ) was rejected on 23 April 1986 by the competent appeals board of the insurance association.

On 26 May 1986 Mrs Gretel Janssen appealed to the Duisburg Social Court ( Sozialgericht ).

On 27 May 1986 the Social Court asked the defendant to comment on the claim and to communicate the file. On 9 July 1986 Mrs Janssen's lawyer asked the court by telephone to fix a date for the hearing as quickly as possible since he feared that the plaintiff would not live to attend a hearing in July or August 1986. The defendant submitted written pleadings and the administrative file to the Social Court on 18 July 1986. The plaintiff's representative replied on 18 August 1986.

On 9 November 1987 the parties were summoned to appear at a hearing on

26 November 1987. This hearing was cancelled on 23 November 1987. On 24 November 1987 the plaintiff's counsel informed the court that Mrs Janssen had died on

27 July 1986. Thereafter the social court proceedings were continued by Mrs Gretel Janssen's family.

On 17 March 1988 the court requested the plaintiff's counsel to indicate the successors in title. It sent a reminder on 8 July 1988. The court received the requested information on 25 July 1988. On 22 November 1988 the parties were summoned to appear at a hearing on 8 December 1988. On 28 November 1988 the plaintiffs' counsel requested to hold the hearing at an earlier hour of the day fixed for the hearing. On

5 December 1988 the Social Court cancelled the hearing. On 14 February 1989 the court set the case down for hearing on 2 March 1989.

On 2 March 1989 the Duisburg Social Court dismissed the claim  on the ground that under Section 539 para. 1 of the Social Security Act ( Reichsversicherungsordnung - RVO) the plaintiff was neither an employee nor had she carried out any work that served the purposes of her late husband's employer. The cleaning of his clothes was part of her tasks as a housewife. The court pointed out that under para. 2 of this provision also persons were insured against industrial accidents who acted like persons insured under para. 1. However, according to the court, the plaintiff had cleaned her deceased husband's clothes because she felt under an obligation to do so on ground of their living together as wife and husband, but not under an obligation to do so for her husband's employer.

On 10 May 1989 the family appealed against the judgment to the Social Court of Appeal ( Landessozialgericht ) of North Rhine-Westphalia. The appeal was received by the court on 12 May 1989.

At the hearing on 30 October 1989 the court summed the employer to take part in the proceedings on the ground that his rights could be affected by the proceedings and requested information as to the work performed by his former employee from 1950 to 1959 and as to the requirements for the protection of the health of workers. The court also instructed a medical expert, Prof. W., to submit a report on the question of whether between 1950 to 1959 medical science was already aware of the danger asbestos constituted for health and whether it was already known that and if so what measures of protection had to be taken.

The employer supplied information on 7 December 1989. The defendant filed written pleadings on 22 December 1989.

On 24 August 1990, the Social Court of Appeal asked doctors to supply reports on the former employee and completed the questions put to the expert. The court obtained medical reports from a general practitioner, Dr. P., on 2 September 1990 and from a hospital doctor, Dr. H., on 10 September 1990.

On 21 September 1990 the court asked the defendant to supply certain information which was submitted on 4 October 1990.

Prof. W.'s report was received by the court on 6 December 1990.

On 12 February 1991 the court summoned the Rhineland Communal Accident Insurance Association ( Rheinischer Gemeindeunfallversicherungsverband ) as a third party and requested Prof. W. to submit an expert opinion on the question of a causal link between the alleged exposure to asbestos and the lethal cancer. In November 1991 the court asked the German Meteorological Service and a witness for information. In December 1991 the court sought supplementary advice from the expert.

On 30 January 1992 the court reminded the expert to submit his report. The expert opinion was received on 13 July 1992. The applicant's lawyer submitted his observations on 7 September 1992.

By a judgment of 14 October 1992 the Social Court of Appeal modified the judgment pronounced on 2 March 1989 by the Duisburg Social Court. The Social Court of Appeal considered that the deceased Mrs Gretel Janssen's cancer had to be considered as a professional disease  ( Berufskrankheit ) and that consequently the defendant had to grant insurance cover. The court considered that Mrs Gretel Janssen's claim was justified in accordance with Section 539 para. 2 of the Social Security Act because by cleaning her husband's workclothes she had acted like a person insured under para. 1 of that provision. In view of the medical expert opinion obtained, the court also considered that there was a causal link between the cleaning activity and the cancer. The court granted leave of appeal on points of law holding that the case raised issues of general interest ( grundsätzliche Bedeutung ).

The defendant insurance organisation thereupon lodged an appeal on points of law (Revision).

On 13 October 1993 the Federal Social Court ( Bundessozialgericht ) set the appellate court's judgment aside and dismissed the action. The Federal Social Court considered that, contrary to the applicants' submissions, the defendant insurance association had been properly represented by its managing director. Like the first instance court the Federal Social Court found that Mrs Gretel Janssen's sickness was not a professional disease as the cleaning of her husband's workclothes mainly served the interests of the couple's household and not the interests of the employer.

The applicants then lodged a constitutional complaint ( Verfassungsbeschwerde ) alleging that the interpretation of Section 539 of the Social Security Act by the social security courts of first and last instance violated the principle of equality before the law and the right to a fair hearing. Invoking Article 6 of the Convention, the applicants further submitted that proceedings relating to professional diseases allegedly caused by asbestos lasted in general too long.

Sitting as a panel of three members, on 12 January 1994 the  Federal Constitutional Court ( Bundesverfassungsgericht ) declined to accept the case for adjudication on the ground that the constitutional appeal was inadmissible for lack of substantiation. The court further  pointed out that a constitutional complaint could not be based on an alleged violation of the European Convention on Human Rights.

COMPLAINTS

1. The applicants complain about the length of proceedings on the whole and in particular of the first and second instance. They submit that despite their counsel's request for an immediate oral hearing an oral hearing was not held in the first instance proceedings before 2 March 1989.

2. The applicants further complain under Article 6 para. 1 of the Convention that they were refused a fair hearing by the German courts. They argue in particular that the Federal Social Court's decision discloses bias as it is grossly wrong. According to them, this court was unduly influenced by the accident insurance associations and decided arbitrarily in favour of the defendant, ignoring the evidence and misapplying the rules in a discriminatory fashion. They also complain that the social courts accepted the power of attorney of the opponent party's counsel although this power of attorney was not signed by the competent representative of the defendant party. They consider that if the highest executive organs of the defendant party had been involved in the proceedings, the decision to lodge an appeal on points of law would probably not have been taken as the defendant's executive committee ( Vorstand ) is composed both of representatives of the employee and employer side.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 March 1994 and registered on 25 April 1994.

On 12 April 1996 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure with regard to the applicants' complaints under Article 6 para. 1 of the Convention concerning the length of the proceedings.

The Government's written observations were submitted on 1 July 1996. The applicants replied on 16 September 1996.

THE LAW

1. The applicants complain under Article 6 para. 1 of the Convention about the length of the proceedings before the Social Courts.

Article 6 para. 1, in so far as relevant, provides as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] tribunal ..."

The Government maintain that the applicants have failed to exhaust domestic remedies. They refer to the Federal Constitutional Court's decision of 12 January 1994 from which it appears that the applicants' constitutional complaint was inadmissible on the grounds that the Federal Constitutional Court was not competent to examine alleged violations of the European Convention on Human Rights and that the applicants had failed to sufficiently substantiate their complaints.

The applicants contest these submissions and contend that they have adequately motivated their constitutional complaint consisting of fourteen pages.

The Commission notes that the Convention has the rank of federal law in the German legal system and provisions of the Convention cannot directly be invoked before the Federal Constitutional Court. However, according to the Federal Constitutional Court's established case-law  the principle of a fair hearing and the right to speedy proceedings is embodied in the Basic Law ( Grundgesetz ) of the Federal Republic of Germany. The Commission considers that the applicants have raised the substance of their complaint before the Federal Constitutional Court and that it cannot therefore be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 of the Convention.

The Commission observes that the proceedings at issue concerned the applicants' claim to compensation under the Social Security Insurance Scheme. The purpose of the proceedings was to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 of the Convention (cf. Eur. Court HR, Duclos v. France judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2179, 2180, para. 53; see also No. 20223/92, Comm. Report 18.10.95, endorsed by the Committee of Ministers in its Interim Resolution CM/Del/Dec(96)567 of 25 June 1996). The Government do not dispute the applicability of Article 6.

As regards the compliance with Article 6, the Government argue that the length of the proceedings cannot be regarded as unreasonable in view of the complexity of the case. They point out that the proceedings before the Duisburg Social Court began on 26 May 1986 and ended on 2 March 1989 and thus lasted approximately two years and nine months. The proceedings before the Social Court of Appeal lasted from 12 May 1989 until 14 October 1992, i.e. about three years and five months. The Government observe that the applicants do not complain of the length of the proceedings before the Federal Social Court.

The Government admit that what was at stake in the proceedings in issue was of considerable importance for Mrs Gretel Janssen .  However, the first instance court could not reasonably be expected to hold a hearing before Mrs Janssen's death on 27 July 1986, i.e. within two months. They point out that the Social Court of Appeal had to make detailed investigations and to decide difficult legal questions on which the courts reached different conclusions. This is shown by the fact that the Social Court of Appeal granted leave to appeal on points of law against its judgment holding that the case raised issues of general interest.

According to the Government, no unreasonable delays were caused by the authorities.

The Government also submit that the applicants' themselves contributed to the length of the proceedings. It is true that Mrs Gretel Janssen's counsel requested an early hearing in view of the disease from which she was suffering. However, the court could not fix a hearing without the defendant's written pleadings and the administrative file. This was received by the court on 18 July 1986. On 1 August 1986 Mrs Gretel Janssen's counsel filed supplementary written pleadings. According to the Government, he had not requested that a date be fixed for a hearing or that the case be dealt with more rapidly. On 13 October 1987 the court received a power of attorney on behalf of the applicants as heirs of Mrs Gretel Janssen without any further explication. On 24 November 1987 the court was informed that Mrs Gretel Janssen had died on 27 July 1986, that is sixteen months after her death. On 17 March 1988 the court requested to be sent evidence concerning Mrs Gretel Janssen's succession. After having renewed its demand on 17 March 1988, the court received the requested information on 25 July 1988. A hearing due to be held on 8 December 1988 was postponed at the request of the applicants' counsel who thus contributed to the length of the proceedings as did the judge's ill-health in the proceedings before the Social Court.

The Government further submit that the length of the proceedings before the Social Court of Appeal was due to the fact that in the applicants' interest the court  had to carefully assess the relevant facts and to take extensive evidence. The court had ordered the necessary investigations as early as at the hearing of 30 October 1989. The submission of the expert opinion took a certain time due to the difficulty of the matter. The medical report was received on 6 December 1990 and a supplementary report on 13 July 1992. Moreover, the Social Court of Appeal asked for reports and for information from the German Meteorological Service and from a witness. The parties had to be given the possibility to comment on these points, third parties' interests were involved and they were invited to take part in the proceedings, namely the former employer of Mrs Gretel Janssen's husband and an accident insurance association. In the Government's view these circumstances should be taken into consideration when assessing the reasonableness of the length of the proceedings.

The applicants contest the Government's arguments. According to them, the overall duration of the proceedings is unreasonable. They submit that the courts decided in an arbitrary manner on their claim. The social security insurance association could have decided on Mrs Gretel Janssen's compensation claim, which she had brought on

23 December 1983, within a month's time. In fact, the case could have been decided rapidly as there was clearly a causal link between the exposure to asbestos and Mrs Gretel Janssen's disease and the calculation of compensation was fixed by law.

The applicants point out that the proceedings before the Duisburg Social Court lasted for almost three years without any evidence taken and the judgment of the Social Court of Appeal was given after further three and a half years.  

The Commission considers, in the light of the criteria established by the case-law of the Convention institutions on the question of "reasonable time" (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that a thorough examination of this complaint is required, both as to the law and as to the facts.

2. The applicants further complain of the judgments given by the Duisburg Social Court on 2 March 1989 and in particular of the judgment given by the Federal Social Court on 13 October 1993 refusing to recognise Mrs Gretel Janssen's asbestosis related disease as a professional disease and to order the social security insurance to pay compensation. They submit that they did not receive a fair and impartial hearing within the meaning of Article 6 para. 1 of the Convention which,  insofar as relevant, provides as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal..."

The Commission recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see e.g. No. 29583/96, Dec. 10.7.97, D.R. 90-A,

p. 109). 

The Commission notes that in the applicants' submissions the judges involved disregarded the evidence and were biased. The Commission recalls that the subjective impartiality of judges is always to be presumed unless there is evidence to the contrary (see e.g. Eur. Court HR, Le Compte , van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 25, para. 58). The fact that the judges accepted the evidence of one side rather than the other is not sufficient to establish a lack of impartiality. Further, it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, mutatis mutandis, Eur. Court HR, Casado Coca v. Spain judgment of 24 February 1994, Series A no. 285-A, p. 18, para. 43; Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, pp. 356, 357, para. 29). Moreover, as general rule, the assessment of the facts and the taking of evidence and its evaluation is a matter which necessarily comes within the appreciation of the national courts and cannot be reviewed by the Commission unless there is an indication that the judges have drawn grossly unfair or arbitrary conclusions from the facts before them (see No. 7987/77, Dec. 13.12.79, D.R. 18, p. 31; Eur. Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 19, para. 60).

In the instant case the Commission observes that in the light of extensive evidence taken by the Regional Social Court of Appeal of North Rhine-Westphalia the Federal Social Court interpreted Section 539 para. 2 of the Social Security Act as meaning that Mrs Janssen's sickness was not a professional disease and that the defendant was properly represented in the proceedings brought by the applicants. The Commission sees no reason to call into question the resolution of this issue by the German courts. Furthermore, the Commission cannot, in the circumstances of the present case, find that the applicants were prevented from arguing their case in an effective manner. The reasons on which the courts based their decisions are sufficient to exclude the assumption that the evaluation had been arbitrary.

In the light of these circumstances, the Commission finds that this complaint discloses no appearance of a violation of Article 6 para. 1 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE the complaint related to the length of the social court proceedings, without prejudging the merits of the case;

DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO    M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber